• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

2. The plaintiff was injured in a motor accident on 1 January 1980. It is alleged that his injuries were caused by the negligence of the defendant in the driving and management of his motor vehicle. The plaintiff issued his Writ on 31 December 1985 - only just within the limitation period. We are not informed whether inquiries were made of the defendant's whereabouts before the issue of the Writ. That might have been a prudent course in view of the lapse of time, but there is clear authority that the question is not whether reasonable effort has been shown to locate the defendant over a particular period but whether, on the date on which the application for substituted service is made, the plaintiff, using reasonable effort, is unable to serve the defendant personally. Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542 at 547. Inquiries made after the issue of the Writ failed to locate the defendant. Martin J. was satisfied that "extensive inquiries" had been made to ascertain the defendant's whereabouts.
3. The Writ having been renewed from time to time, application was made to the Master for an order for substituted service. On 23 June 1988 the Master ordered: "that personal service of the Writ of Summons be dispensed (with) on terms that a sealed copy of the Writ of Summons be served on upon (sic) the Territory Insurance Office, Darwin in the Northern Territory of Australia together with a sealed copy of the Orders made by Master Le Fevre on the 23rd day of June 1988 and that that service be effected as of 30th day of June 1988."
4. It appears from His Honour's judgment that although the application before the Master was made ex parte, the Territory Insurance Office was given copies of the application and the affidavits in support. It did not formally seek to appear but an observer from that Office was present during the proceedings before the Master. When the Master's Order was served on it the Territory Insurance Office entered a conditional appearance on 8 July 1988 and on the same day issued a Summons seeking to set aside the Order. The summons was supported by an affidavit by the Assistant Manager of the Territory Insurance Office setting out that the Office did not know the present whereabouts of the defendant nor how contact with him might be made, and had no information which would be likely to assist in these objectives.

As His Honour Martin J. observed, the real applicant before him was the Territory Insurance Office which was empowered to make the application pursuant to s. 40 of the Motor Accidents Compensation Act. That section provides (s. 40(1)(a) and (b)) that the Office may take over during such period as it thinks fit the conduct on behalf of a person referred to in s. 6(1) of any proceedings taken or had to enforce the claim against him. S. 6(1) refers, inter alia, to a person liable to pay damages in respect of injury to any person as the result of an accident that occurred in the Territory when such person was in control of a motor vehicle other than a "Territory motor vehicle", or in any place whether or not in the Territory when such person was in control of a Territory motor vehicle. "Territory motor vehicle" is extensively defined in s. 4. I think it appropriate to point out that the evidence before us establishes only that the accident occurred in the Territory, that the defendant had a Darwin address but was believed to be "around the Katherine area" until about 1986, that he had a Queensland licence and might now be in New South Wales. Whether he was a "resident of the Northern Territory" at the date of the accident (see s. 4(b)(1)) or whether the vehicle he was driving at the time came within the definition of a "Territory motor vehicle" might have been difficult to establish on the material before His Honour and before us. But this point is not taken by the Territory Insurance Office and indeed I note that in the proceedings before Martin J. counsel for that Office expressly said that "there's no issue ... that Territory Insurance Office is liable to indemnify the defendant in respect of the plaintiff's claim ... there won't be any point taken about that aspect of the matter." 6. I propose therefore to refer hereafter to the Territory Insurance Office as "the applicant". 7. The applicant takes two objections to the order for substituted service:- 1. that the evidence does not establish that a case for the application of rule 6.09 was made out. 2. that even if such a case were made out the order should not have provided that the Writ be served on the applicant. 8. As to the first objection it is necessary to set out rule 6.09(1). That rule states:- "Where for any reason it is impracticable to serve a document in the manner required by this chapter, the Court may order that, instead of service, such steps be taken as it specifies for the purpose of bringing the document to the notice of the person to be served". 9. That rule replaced the earlier O.10 r.2(3) which was in the following form:- "(3) If it is made to appear to the Court or a Judge that the plaintiff is from any cause unable to effect prompt personal service, the Court or the Judge may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise as is just." 10. That rule in turn was adopted from the original English rule which can be found first in rule 5 of the Rules of Procedure in the Schedule to the Supreme Court of Judicature Act 1873 and then as O.9 r.2 in the Schedule to the amending Act of 1875, and now (as amended) in O. 65 r. 4. 11. The rule has a long history, for its original terms were not altered in England until 1962. The phrase "is from any cause unable to effect prompt personal service" was then replaced by the phrase "is impracticable for any reason to serve that document personally". That again was altered in 1979 to read, "is impracticable for any reason to serve that document in the manner prescribed." With some minor differences the same phraseology appears in Northern Territory Rule 6.09, Victorian Rule 6.10 and New South Wales Rule Pt. 9 r. 10. 12. Goulding J. in Re Conan Doyle's Will Trusts (1971) 2 All ER 1377 was of the opinion that the change in wording made a change in practice. "Formerly it was sufficient to show that prompt personal service could not be effected and then the court has a discretion to order substituted service. Mere lack of promptness as such is not, in my judgment, sufficient under the present rule; it has to be shown that personal service is for one reason or another impracticable." (p 1379). 13. His Honour was successful in getting the editors of the White Practice to alter their original comment that the change in wording "makes no material change in the law or practice relating to substituted service" (1970 Edn. 65/4/1) to the comment that the wording "does make a change in the former practice" (e.g. 1973 Ed. 65/4/1 and Editions thereafter). He does not seem to have had the same success with the Editors of the fourth edition of Halsbury who actually cite Re Conan Doyle's Will Trusts as authority for the proposition that the change of wording has not changed the practice. See Vol 37, para 153 note 3. As a matter of strict literary construction Goulding J. must be correct, but, with respect, he has overlooked the historical context in which the change was made; and it would seem that the learned editors of the White Book were correct in their original comment. Professor Williams, whose expertise in this field is rightly recognised, considers that the test is the same under the new rule as under the old. See Civil Procedure - Victoria p 2497. He gives the convincing reason that the cases under the old rule had established that to show inability to effect prompt personal service the applicant had to show a "practical impossibility" of actual service. That is the phrase used in the leading case of Porter v Freudenberg (1915) 1 KB 857 at 889. So interpreted, there seems nothing to differentiate between the phrase "unable to effect prompt personal service" and the phrase "impracticable to serve", even if the word "prompt" is used only in the earlier rule. In Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542 and 547 Mason J. (as he then was), speaking of the standard of diligence or effort required of a plaintiff in seeking out a defendant in a case where substituted service is sought, says:- " That standard, however it is expressed, is one of reasonableness so as to show a practical impossibility of personal service" (Emphasis added). 14. It would seem therefore that the later rule is no more than a more accurate statement of the older rule as interpreted by the courts. That is the basis upon which both counsel proceeded and should, in my view, be the basis upon which this Court should proceed. 15. The locus classicus from which any examination of the rules of substituted service should commence is Porter v Freudenberg (1915) 1 KB 857. There Lord Reading C.J. delivered the judgment of a very strong Court of Appeal (Lord Reading C.J., Lord Cozens-Hardy M.R., Buckley, Kennedy, Swinfen Eady, Phillimore and Pickford L.JJ.). The reason for the assembly of no less than seven Justices of Appeal was to determine whether or to what extent an alien enemy could sue or be sued in the King's Courts; but the case also and necessarily involved a question of substituted service on a defendant who resided in Germany at a time when England was at war with that country. In the course of delivering the unanimous judgment of the Court of Appeal Lord Reading C.J. said at p 888:- " In order that substituted service may be permitted it must be clearly shown that the plaintiff is in fact unable to effect personal service and that the writ is likely to reach the defendant or to come to his knowledge if the method of substituted service which is asked for by the plaintiff is adopted." 16. Mr Tippett, for the applicant, submits that the present case does not fulfil those requirements. He argues that Martin J.'s observation that "extensive inquiries" had been made to locate the defendant are not borne out by the material placed before him, and that His Honour had somewhat too readily adopted that expression from its appearance twice in the affidavits filed on behalf of the plaintiff. 17. The first time the expression appears is in the affidavit of Mr Burke, a Legal Officer of the plaintiff's solicitors, sworn on 17 February 1988. He deposes that he asked a firm of commercial agents "to make extensive inquiries" in the Northern Territory and Queensland as to the defendant's whereabouts. In a later affidavit sworn 20 May 1988 he says that he asked those agents to make further inquiries. In this later affidavit he also sets out that " the file in this matter reveals to me that since the within Writ was taken out extensive inquiries have been made in the Northern Territory of Australia as to the whereabouts of Michael John O'Neil. The only results from those inquiries have been various rumours which have each been investigated but have failed to reveal the whereabouts of Michael John O'Neil". 18. In fact the inquiries indicated that the defendant did not reside at a Darwin address which the plaintiff had of the defendant; that he was resident in the Katherine area. Process servers were employed to locate the defendant in that area but, although at first they thought he was in that area, ultimately their inquiries indicated that he was not. Mr Jones, another legal officer employed by the plaintiff's solicitors deposed to these matters and also to the fact that another firm of process servers had made inquiries at a particular hotel in Katherine where it was believed the defendant had been seen but they had been unable to obtain any information. From information made available to him, including Police Accident Reports, he believed that the defendant may well be resident in Queensland since he had a Queensland drivers licence; but in a later affidavit Mr Jones deposed that he did not have a firm conviction that the defendant resided in Queensland and that "he might be anywhere". This last remark was presumably prompted by some information, the source of which is not revealed, that the defendant was an alcoholic. That appears in the further affidavit of Mr Burke of 20 May 1988 where it is also stated that inquiries have revealed that the defendant may be in a Mental Institution in New South Wales. Mr Burke adds that inquiries made in New South Wales have failed to reveal the whereabouts of the defendant and that the Australian Legal Aid Office has been advised that, in any event, it is not the practice nor policy of Mental Institutes in New South Wales to advise as to the identity of patients in their institutions. Finally he deposes that he believes that no additional or further inquiries would have any reasonable prospect of success. 19. Now there would seem to be some matters that are conjectural in these affidavits, but this much is shown that, apart from the plaintiff's solicitors' own inquiries, two firms of private enquiry agents and one firm of commercial agents (assuming there to be some difference in these descriptions in this context), have failed to locate the defendant, that nearly nine years have elapsed and no fixed place of abode of the defendant can be found. Some areas of investigation seem to have been overlooked (e.g., Electoral Rolls), but I would not be prepared to disagree with Martin J. that extensive inquiries had been made. While an Appeal Court is in as good a position as the trial judge to draw inferences of fact from the established evidence (Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531) that is not to say that one should undertake that exercise on an application for leave to appeal rather than appeal simpliciter, if there is material upon which the trial judge could come to his conclusion, and where the argument is one of semantics as to what constitutes "extensive inquiries". In the circumstances of this case I would not be prepared to consider that a proper basis for granting leave to appeal in an interlocutory matter had been made out on this ground. 20. The second argument is that there is no justification for a form of substituted service which involves service upon the applicant. In putting this argument Mr Tippett invites us to overrule certain authorities of this court and to refuse to follow certain cases in other hierarchies. 21. What might be regarded as a rule of convenience has developed in this court and in certain other courts that, if a judgment obtained against the defendant in a motor accident case may ultimately be enforced against his third party insurer, then, provided all proper inquiries to find the defendant have been unsuccessful, an order for substituted service upon his insurer may be made. The authority for this in the Northern Territory is to be found first in Lawford v Hosth (1974) 5 ALR 57 where Forster J. (as he then was) traces the origin of the concept from an observation of Goddard L.J. in Murfin v Ashbridge and Martin (1941) 1 All ER 231 at 235 (albeit made very cautiously); to a somewhat stronger observation by Diplock L.J. in Gurtner v Circuit (1968) 2 QB 587 at 605; to a positive acceptance in Queensland by Wanstall J. in Kevin v Schmeisze (1964) Q WN 51; followed by Lucas J. in Edmonds v James (No. 2) (1968) Q WN 46; the latter case then being regarded by Zelling J. in Hodge v Club Motor Insurance(1974) 7 SAS R 86 at 102 as a "robust but common-sense approach". 22. Forster J. followed the Queensland cases and found this justification:- " The principles underlying these cases are, first, that the real defendant in motor accident cases is the third party insurer of the defendant (McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418) and, second, that if a judgment obtained against the defendant may ultimately be enforced against the defendant's insurer then, provided all proper inquiries to find the defendant have been unsuccessful, an order for substituted service upon the insurer may be made whether or not the policy was entered into interstate." 23. His Honour refused to follow a decision to the opposite effect Randall v Murphy (1967) Tas SR (NC) 262, describing the report as exiguous; which indeed it is, being no more than a case note. However the reason is stated clearly enough that the order for substituted service on the insurer must be set aside because there was no likelihood shown in that case that the service ordered would come to the knowledge of the defendant. 24. I think it must be frankly conceded that the approach adopted by Forster J. and by the Queensland judges is a deviation from the directives laid down in Porter v Freudenberg insofar as service on the insurer does not, if nothing more is shown, necessarily mean that the writ is thereby likely to come to the knowledge of the defendant. There will obviously be cases - and the present case is an example - where the insurer will have no better means of knowing the whereabouts of the defendant than the plaintiff has. But there is a plain injustice if a plaintiff who has done all he could to find the defendant, is deprived of a remedy although there exists a clear legislative policy through compulsory third party insurance that, in motor vehicle accidents, a plaintiff, who may properly establish liability against the driver of another vehicle and who is not outside certain exceptions provided by legislation, such as limitation periods, should have a remedy. That, after all, is what owners of motor vehicles pay for and that should be their reasonable expectation. If there is to be a detriment because of the disappearance of the allegedly negligent driver that detriment should in fairness fall on the insurer who has received the benefit of the premiums under the scheme: provided that the plaintiff first plays his part in making due and proper inquiries. I am not persuaded that the potential injustice complained of by the applicant in this case (see paragraph 9 of the affidavit of Mr Stewart sworn on behalf of the applicant) outweighs the actual injustice suffered by the plaintiff if he cannot proceed because the defendant cannot be found. The applicant can take over the conduct of the proceedings on behalf of the defendant (s. 40(1)(b)), and can still put the plaintiff to proof and dispute both liability and quantum. It may suffer a tactical disadvantage, (although one suspects that the absence of a possibly unreliable defendant may not always be a calamity), but it can still proceed. 25. The decision in Lawford v Hosth supra was followed in the Northern Territory by Ward J. in Hunt v Molk (1975) 11 ALR 288, and by Nader J. in Nicholls v Thiel (1983) 25 NTR 11. In neither of those cases could it be said that the order providing substituted service on the third party insurer made it likely that the writ would reach the defendant or come to his knowledge. Gallop J. in Munkarra v Fischer (1980) 5 NTR 3 at 6 referred to the suggestion that there was a "special situation relating to motor vehicle accidents and orders for substituted service" but did not find it necessary to come to any decided view. Gillard J. in Bradvica v Radulovic [1975] VicRp 42; (1975) VR 434 may be said to have given some guarded approval to the suggestion when he said at p 440:- " Having regard to the views stated by Diplock L.J. in Gurtner's case it may be that substituted service on the Incorporated Nominal Defendant could be justifiably ordered. It is not necessary, however, to come to a concluded view about this." 26. The decisions in Lawford v Hosth and Hunt v Molkwere followed by Master Allen in the Supreme Court of NSW in Chappell v Coyle (1984) 3 NSWLR 557 who observed:- " Those decisions constitute, in my judgment, persuasive authority that, in the exceptional circumstances that the defendant is fully covered by statutory insurance, that the insurer has the right to conduct any defence on behalf of the defendant and that recovery in respect of any judgment obtained can be enforced against the insurer, it is proper to order substituted service upon the insurer notwithstanding that there is no likelihood that the defendant personally will become aware of the proceedings." 27. That decision, however, was reversed on appeal by Yeldham J. (Chappell v Coyle (1985) 2 NSWLR 73). 28. His Honour reviewed the cases already mentioned and the process whereby the sort of order made by Master Allen came to be considered appropriate by some judges in the circumstances the Master has set out. His Honour considered this to be an incorrect procedure based on insubstantial foundations and contrary to the principle propounded in Porter v Freudenberg that it must be clearly shown that the writ is likely to reach the defendant or come to his knowledge if the method of substituted service sought is adopted. He drew attention to the express requirement in the New South Wales rules (as in the Northern Territory and Victorian rules) that the Court may order that, instead of service, such steps be taken as it specifies "for the purpose of bringing the document to the notice of the person to be served". He pointed out that the relevant Queensland rule, in force when the decisions of Kevin v Schmeisze and Edmonds v James were handed down, did not contain that phrase, but allowed the court to "make such order for substituted or other service ... as is just". Nevertheless the Queensland decisions were made under substantially the same rule as prevailed in England when Porter v Freudenberg was decided; so the Queensland judges were still neglecting the principle there set out that it must be shown that the writ was likely to reach the defendant or come to his knowledge. If, as seems to be the case, the new rule is no more than an attempt to state the old with greater clarity, the addition of the words "for the purpose of bringing the document to the notice of the person to be served" is again no more than enshrining the general principles of Porter v Freudenberg; but the exceptional case developed under the earlier rule might still obtain under the later restatement. Indeed the phrase "for the purpose of" may be somewhat less strict than the phrase "likely to reach". At least it contemplates that the purpose may not be achieved. 29. In Chappell v Coyle Yeldham J. at p 85 acknowledges that "the reality of the situation is that the conduct of the proceedings is undertaken by such insurer, who is liable to indemnify its insured against any liability he may have, and who, if necessary, can be compelled by the plaintiff to pay the amount of any judgment. Cases such McCann v Parsons and others mentioned by Gillard J. in Bradvica v Radulovic (at 445) emphasize that in some circumstances the court should have regard to the realities of the situation". His Honour then continued "But I do not think that such 'realities' would justify the court in making an order for substituted service in circumstances not permitted by the relevant rule of court or else contrary to its obvious spirit and intendment". 30. I acknowledge the strict logic of His Honour's reasoning. But I would not, with respect, think it necessarily within the spirit and intendment of the rules to deprive a plaintiff of relief in the exceptional case, where all that stands between him and a legislative scheme expressly devised to give him a remedy if the opposite party cannot be found, is the very fact that the opposite party cannot be found. In those circumstances and on the basis of the reasoning in such cases as Lawford v Hosth it should be open to the Court to specify service on the insurer "for the purpose of bringing the document to the notice of the person to be served" because that is all that is left that can reasonably be done, and although the purpose may not be achieved. 31. It seems that Foxe v Brown, which was decided shortly before Chappell v Coyle, was not cited to His Honour Yeldham J. in the latter case. In Foxe v Brown Mason J., as he then was, seems to have accepted the existence of the exceptional case of service on a third party insurer even though there was little likelihood of the writ thereby coming to the knowledge of the defendant. His Honour says at pp 546-547:- " The second issue relates to the order for substituted service of the writ and statement of claim. In general, for an order for substituted service to be made it must be shown: (a) that the plaintiff, using reasonable effort, is unable to effect personal service; and (b) that the method of substituted service requested is one which is likely to cause the writ to come to the knowledge of the defendant (Porter v Freudenberg (1915) 1 KB 857). However, in a number of cases substituted service of a writ has been ordered on a third party motor vehicle insurer against whom a judgment obtained may ultimately be enforced even though there was apparently little likelihood of the writ thereby coming to the knowledge of the defendant (eg Kevin v Schmeisze (1964) QWN 51 and Lawford v Hosth (1974) 5 ALR 57). In Lawford v Hosth Forster J. (at pp 58-9) identified the principles underlying these cases as being: ' ... first, that the real defendant in motor accident cases is the third party insurer of the defendant (McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418; (1955) ALR 14) and, second, that if a judgment obtained against the defendant may ultimately be enforced against the defendant's insurer then, provided all proper inquiries to find the defendant have been unsuccessful, an order for substituted service upon the insurer may be made whether or not the policy was entered into interstate.' I do not understand the argument of counsel for the